Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal Division, of Delaware County at No. 3671-85.
Robert F. Pappano, Assistant Public Defender, Chester, for appellant.
Joseph J. Mittleman, Assistant District Attorney, Media, for Com., appellee.
Cirillo, President Judge, and McEwen and Tamilia, JJ. McEwen, J., concurs in result. Tamilia, J., files a dissenting statement.
[ 367 Pa. Super. Page 455]
This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Delaware County following a jury trial. We reverse.
The instant conviction stems from an earlier arrest for prostitution and related charges. Appellant Janet Butler testified in her own behalf at a trial in 1984 where she was subsequently acquitted of the prostitution charges. During the trial, Butler's attorney asked if she had ever been convicted of a crime, to which she responded, "No, sir." Following her acquittal, Butler filed a civil action against a police detective and various other county officials based on an allegedly coercive body cavity search. Shortly after the civil suit was filed, Delaware County authorities discovered that Butler in fact did have a prior conviction for prostitution in the State of Delaware and was in violation of her Delaware probation. She was then arrested and tried for perjury based upon her allegedly false testimony at her 1984 trial. During the course of the trial for perjury, Butler attempted to explain that she was not lying when she stated under oath that she had no prior convictions. She contended that she thought that since an appeal had been taken in the Delaware case, her conviction was not
[ 367 Pa. Super. Page 456]
final. She indicated that she had lost track of her attorney and was unaware of the status of her appeal.
Butler's Delaware probation officer contradicted this testimony. He stated that she had violated her probation and after a June, 1985 hearing, her probation was revoked and she was resentenced to a prison term. He also stated that at the June, 1985 probation revocation hearing, Butler had testified that she was aware since 1982 that her appeal had been denied. This testimony was corroborated by a tape of the hearing.
During the trial, appellant sought to impeach the testimony of Dennis O'Leary, a Delaware County Detective who is a defendant in Butler's civil suit. The detective was called by the Commonwealth to corroborate that Butler had in fact testified under oath that she had never been convicted of a criminal offense. O'Leary also testified that he was the person who had learned of Butler's Delaware conviction and that he had informed the District Attorney's office. Out of the jury's presence, he claimed that it was merely coincidence that this information came to his attention after the civil suit was filed. He stated that he was going through Butler's file sometime in 1985 and noticed a Department of Justice report indicating that she had been arrested in Delaware for prostitution in 1982. O'Leary then investigated the matter, eventually learning of the conviction. He denied that the Department of Justice report had been in her file at the time of the 1984 trial. However, he did admit that such reports are routinely requested at the time of arrest. In this case, according to O'Leary's testimony, the report was not received for at least a year after the initial request. The policeman stated that he was unaware of any other instance where the process took longer than three months. O'Leary also testified that he could not recall why he was looking through Butler's file at the time he noticed the Justice Department report.
Defense counsel wished to show that O'Leary's testimony was biased because he was a defendant in the civil suit. Butler claimed ...